Criminal Procedure — double jeopardy

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United States Court of Appeals For the Seventh Circuit

Criminal

Criminal Procedure — double jeopardy

It does not violate double jeopardy to try defendants with different, although overlapping, conspiracies.

“There is overlap as we said between the successive prosecutions, especially with regard to the types of street-level vice charged in previous indictments. But after we warned in our previous decision that if the government’s evidence at the trial of the present case (which remember was about to start when we rendered that decision) duplicated its evidence in the previous trials of Calabrese and Marcello, the defendants might be able to plead double jeopardy successfully, United States v. Calabrese, supra, 490 F.3d at 580-81; cf. United States v. Laguna-Estela, 394 F.3d 54, 58-59 (1st Cir. 2005); United States v. Solano, 605 F.2d 1141, 1145 (9th Cir. 1979), the government took pains to present evidence in the current trial of conduct that had not figured in the previous ones and that distinguished the scope of the Outfit conspiracy from that of the street crew conspiracies. We did not think that the defendants had proved double jeopardy from a comparison of indictments, and their claim is even weaker now that the second trial has been conducted. We can’t say that the ‘government contrived the differences to evade the prohibition against placing a person in double jeopardy.’ United States v. Calabrese, supra, 490 F.3d at 580. The present trial substantiated the functional differences between the Outfit and the street crews that show that these are different criminal enterprises, with different functions that generate different though overlapping patterns of racketeering activity. United States v. Langella, supra, 804 F.2d at 188-89.”

Affirmed in part, and Reversed in part.

09-1265, 09-1287, 09-1376, 09-1602, 09-2093, 09-2109 U.S. v. Schiro

Appeals from the United States District Court for the Northern District of Illinois, Zagel, J., Posner, J.